By Glenn Sugameli, Senior Legislative Counsel with Earthjustice and head of Judging the Environment

In 2005, when the Senate GOP leadership planned to violate the Senate rules to ban filibusters of judicial nominations, then-Senator Trent Lott (R-MS) dubbed it the “nuclear option” because it would shut down the Senate. Editorial boards from 47 states and D.C. (including more than 70 that endorsed President Bush) wrote over 600 editorials against the nuclear option., and editorial cartoonists ridiculed supporters.  A shutdown was averted by a last-minute agreement by a bipartisan “Gang of 14” Senators.

Now, “Senate Shutdown,” an April 2^ndWall Street Journal editorial, relates how Senate Judiciary Committee ranking Member Arlen Specter (R-PA) “stop[ped] by to chat about his plans ‘to close down the Senate.’” On April 3, Senate Minority leader Mitch McConnell (R-KY) said he was considering this option.

This nostalgia for shutdown threats is unjustifiable. Senate Judiciary Chairman Patrick Leahy (D-VT) recently explained the record on circuit court of appeals nominees: “nearly three quarters of President Bush’s nominations have been confirmed, compared to just over half of President Clinton’s.” Bizarrely, eight Republican Members of the Judiciary Committee chose to protest by delaying for an hour the April 3^rd Committee voice vote approval of Catharina Haynes to the 5^th Circuit Court of Appeals, which was followed by a hearing on four district nominees who were supported by their home-state (Missouri and Virginia) Senators.

The current threats are also misdirected. President Bush has been “Needlessly Provoking the Senate” to create artificial vacancies, as I explained in my March 3rd column. 

Since then, the President has taken one very positive step. He followed up on the withdrawal of 4^th Circuit nominee E. Duncan Getchell, who was opposed by home-state Senators John Warner (R-VA) and Jim Webb (D-VA), by belatedly nominating Virginia Supreme Court Justice G. Steven Agee. Last June, after interviewing a dozen candidates, Warner and Webb jointly recommended Agee and four others for two Virginia 4^th Circuit seats. Senator Leahy immediately stated that “I expect the Judiciary Committee and the Senate will proceed promptly to consider and confirm Justice Agee’s nomination.”

If Senators really want to confirm lifetime in this election year, they will urge President Bush to choose another name from the Warner-Webb list, and to withdraw extreme nominees and the six Circuit Court nominees whose selections were designed to generate hone-state Senator opposition.

Extreme Nominees

The pending 4^th Circuit nominee from South Carolina, Steve A. Matthews , advised Attorney General Meese on selection of nominees for federal judgeships. Legal analyst Dahlia Lithwick wrote in Slate that his resume “suggests that Matthews’ strongest credentials include his role as former state chapter president of the Federalist Society and membership [with Meese] on the board of directors for the Landmark Legal Foundation,” . . which tried “to nominate Rush Limbaugh for a 2007 Nobel Peace Prize.”

Matthews also served as an officer of Landmark Legal, which is headed by talk show host Mark R. Levin, who called global warming “nonsense” and “phony,” and condemned Sen. John McCain (R.-Ariz.) and Sen. Joseph I. Lieberman (I.-Conn.) as “liberal idiots.”  In Men in Black: How the Supreme Court Is Destroying America, Levin thanked Matthews and Meese for having “supported me in all I do” and wrote that the Supreme Court was “merely upholding the Constitution” in its long-discredited 1936 ruling that Congress lacks authority to regulate employer-employee relations, including “wages, working conditions, the right of collective bargaining, etc.”

Robert J. Conrad Jr., another pending 4th Circuit nominee, also has an incendiary record.  While former Sen. John Edwards (D-N.C.) was in Congress, he blocked Conrad’s district court nomination. In 2005, Sen. Patrick Leahy (D-Vt.) reluctantly approved it after highlighting Edwards’ concerns and Conrad’s “inflammatory writings.”  These include Conrad’s 1999 letter in the Catholic Dossier, identifying himself as a “federal prosecutor,” denouncing Sister Helen Prejean as a “church-hating nun” and insisting that he “found only liberal drivel” in Dead Man Walking, Sister Helen’s book about her efforts to help people on Louisiana’s death row  Conrad’s letter displays far-reaching contempt:  “The ACLU, Amnesty International and other like-minded organizations are her guiding lights.  For fellowship, well, there is the ‘Sisterhood.’”  Implausibly, he told the Senate, “I respect and admire Sister Helen,” and that he did not think any civil rights groups (including the ACLU and Amnesty International) were “radical” or “fringe.”

When Conrad sat by designation on the 4th Circuit, he joined a notorious decision that allowed mining companies to bury streams with waste. That decision reversed a district court judge and led three circuit judges (of eight voting) to dissent from denial of rehearing because the decision “eviscerates” key language of the Clean Water Act and undermines its protective purpose.

President Bush has made a mockery of the Senate’s constitutional “advise and consent” duty, by only accepting advice on appellate nominees from senators who are willing to rubber-stamp his preferred choices, no matter how extreme. For example, Republican Senators Lindsey Graham and Jim DeMint agreed to support Matthews after Bush dismissed their initial choice, state Court of Appeals Judge John Kittredge, a 16-year veteran of the bench.

For more see www.judgingtheenvironment.org

-Glenn Sugameli has headed Earthjustice’s Judging the Environment project on federal judicial nominations and the environment for six years

This week's blog features an Earthjustice guest, Glenn Sugameli. Glenn is the Senior Legislative Counsel in our , office, and heads our project, Judging the Environment.

Some quick background: During his term, President Bush has routinely pushed extreme nominees for lifetime judicial appointments to the federal bench. He has consistently ignored the advise-and-consent role of the Senate and pandered to his conservative base. At a  morning meeting followed by a press conference at the White House in early February, Bush reignited the fire by calling upon the Senate to approve radical judicial nominees. More from Glenn:

Senators must Just Say No to President Bush’s unilateral, extreme nominations for lifetime judgeships

By Glenn Sugameli, Senior Legislative Counsel with Earthjustice and head of Judging the Environment

President Bush repeatedly has gone out of his way to antagonize Republican and Democratic senators who take their Constitutional “advise and consent” role seriously. In July 2007, The Richmond Times-Dispatch’s conservative editorial board opined that President Bush’s unsuccessful nomination of Jim Haynes to a seat on the 4th Circuit was opposed by Sen. Lindsey Graham (R-SC) and “seemed deliberately provocative.”

Bush’s pattern is long-standing. For example, two Circuit seats remain vacant. Sens. Debbie Stabenow and Carl Levin, both D-Mich. "have said since 2001 that we wanted to work with the White House on recommending and giving input on judicial nominations, but they've chosen not to work with us," Stabenow said. . . . "It's about the process."

Bush is unnecessarily antagonizing home-state Senators from six states by refusing to discuss appellate nominees and nominating those he knows they oppose. For example, Virginia Republican Senator John Warner and Democratic Senator Jim Webb interviewed more than a dozen candidates for two Virginia 4^th Circuit vacancies and jointly recommended a Bush district court judge and four others. Bush ensured a continuing vacancy by nominating E. Duncan Getchell, whom they had interviewed and rejected. After he was nominated, Getchell was named in $7.5 million defamation suit by another lawyer, who alleged that Getchell, so as not to "doom his judicial aspirations," shifted blame for the Virginia Supreme Court’s dismissal of an appeal because trial transcripts were not filed on time.

On January 18, Getchell finally withdrew while his American Bar Association rating was still pending.  This created a wasted opportunity to fill two seats; there are now no nominees for the Virginia 4^th Circuit seats.

President Bush refused to discuss home-state Republican Sen. Lincoln Chafee’s recommendation for the only 1st Circuit seat state Supreme Court Justice Robert Flanders, who would have been supported by Sen. Jack Reed and by Chafee’s successor, Sen. Sheldon Whitehouse. Bush then refused to consult with Reed and Whitehouse before he nominated trial Judge William E. Smith.

Maryland’s senators indicated that they could support filling another 4th Circuit seat with any of the state’s eight Republican federal district judges, including three nominated by Bush. As The Baltimore Suneditorialized, Bush’s subsequent choice of Rod J. Rosenstein “seems primarily intended as a poke in the eye to ’s two senators” who had publicly said that Rosenstein lacked the requisite deep roots in the state’s legal community.

New Jersey’s senators were victims of a bait-and-switch. After they agreed to Bush’s initial choice for Sam Alito’s 3^rd Circuit seat, the actual nominee was announced before they were even informed, “ostensibly because [Shalom] Stone is a political conservative who is affiliated with The Federalist Society.” 

Results from a public opinion poll show that voters in rural, agricultural congressional districts overwhelmingly support protections for wetlands, rivers, lakes and streams. Perhaps most surprising, two-thirds of voters also agreed that they would be more likely to vote for a candidate who voted to have the Clean Water Act protect all bodies of water from pollution.

The poll, conducted by nationally recognized Republican pollster Bellwether Research & Consulting and sponsored by Earthjustice, involved 300 randomly selected registered voters in voting districts in Illinois (15th), Ohio (18th) and Tennessee (4th), defined as "rural" based on the census tract of that address. The poll showed strong, consistent responses from voters in each district on their attitudes and opinions on protecting lakes, rivers, streams and wetlands from pollution and degradation.

The data refute claims by industries opposing clean water legislation currently in the U.S. Congress. Groups opposing the Clean Water Restoration Act argue that rural voters opposed the idea of strong protections for America's waters. According to Bellwether, "These rural voters reject the notion that applying the Clean Water Act to isolated wetlands or other non-navigable waterways would be onerous for property owners, businesses or developers."

The Clean Water Restoration Act, introduced last summer in the U.S. House of Representatives and in the U.S. Senate is currently under review by the House Committee on Transportation and Infrastructure. The House version currently has over 170 co-sponsors, and the Senate version has 20 co-sponsors. This important legislation simply confirms that when Congress passed the Clean Water Act over 35 years ago, it meant to protect all America's waters. Recent muddied Supreme Court decision, ambiguous guidance documents from the EPA and the Army Corps of Engineers, and an organized attempt by polluters and developers has left many waters vulnerable to pollution and degradation. This poll shows that rural voters support protections for waters where we fish, drink and recreate.

As the name might suggest, a brownfield is an "abandoned, idled or under-used industrial and commercial facility where expansion or redevelopment is complicated by real or perceived environmental contaminations." Simply put, these brownfields are sites big and small where former gas stations, paint manufacturers and other industrial businesses left a legacy of pollution that make them a dangerous health threat to surrounding communities. In New York City alone, there are over 6,500 of these undeveloped and contaminated sites.

In 2003, the New York state legislature passed a monumental brownfields clean up program unlike any other in the nation. Environmentalists and public health groups praised the bill and its high standard of cleanup. However, when the New York State Department of Environmental Conservation introduced the rules that implemented the legislative fix, the program fell far short of what that state's lawmakers envisioned.

Late last month, Earthjustice, representing Sierra Club, New York Public Interest Research Group, Environmental Advocates of New York and Citizens' Environmental Coalition, appeared in New York Supreme Court to argue that the NYDEC cleanup standards don't match what state law requires. Passed under former Gov. George Pataki, the brownfield regulations weakly define these sites as "property with an onsite pollution source," rather than the much stronger legal definition of a brownfield as, "any property with pollution, even leaked there from a polluting source on another property."

As reported by the Associated Press, "The difference can be significant. Allowing only property with a source of pollution on site could significantly limit how many properties can be cleaned up using the brownfield state law."

The case is now awaiting judgment in the state Supreme Court.

Very quietly, EPA proposed a change to existing law that would allow facilities across the country to store, transport and burn hazardous waste without environmental and public health safeguards currently in place. The move -- one pushed for by industry -- would likely increas emissions of toxic pollution in over 80 communitis across the country where these facilities are currently operating.

Earthjustice attorneys commented on the proposal, and filed a Freedom of Information Act request to obtain more details about the locationis, size, and amounts of hazardous waste EPA estimated would be burned under this new rule. According to EPA documents, 86 facilities would burn approximately 100,000 tons of additional hazardous waste without any safeguards for emisisons and storage. As if they were waving their regulatory wand, EPA magically redefined this hazardous waste as "fuel," allowing the burning of this material. Unfortunately, nearly 90 percent of the facilities that will now be able to burn this waste without any oversight are already or have been under corrective action for violating existing laws in the past regarding their handling of this material. It's as if EPA is rewarding speedsters with brand new Maseratis.

Twenty five members of Congress have taken note, sending EPA a strongly worded letter to reopen the rule for more public comment, and asking the agency to report to the communities likley affected by this rule change how they will be facing more pollution and less protection. EPA has not yet respnonded to the request, and the so-called "comparable fuels" rule, however, is still pending.

The U.S. EPA has for years been dragging their feet when it comes to regulating the cement industry for their pollution. Over 100 cement kilns across the country emit about 11,000 pounds of mercury every year, according to the EPA's Toxic Release Inventory. However, these numbers are all voluntarily reported, sometimes drastically underestimating the actual mercury emissions.

For example, a cement kiln in Alpena, MI, reported in 2003 emissions of only 66 pounds of mercury; in 2005, after the state required the cement kiln test its actual emissions, the mercury output skyrocketed to approximately 520 pounds a year. The nation's largest mercury emitters are often cement kilns, which can pump thousands of pounds of mercury pollution into the air.

The EPA refusal to act has led to calls upon state governments to limit mercury pollution from individual kilns by requiring limits on mercury in state-issued permits. The latest action on this comes from New York, where Earthjustice, the Sierra Club, New York Public Interest Group and Friends of Hudson sent letters to the New York State Department of Environmental Conservation and Governor Eliot Spitzer, calling upon them in include mercury limits for the Lafarge cement kiln in Ravena, NY.

The Albany Times-Union ran a story about this move, and local radio and television outlets covered it as well. If the federal EPA is not going to make the moves to follow the law and limit this mercury pollution, hopefully the states will.

There are many problems with coal, many of which you've probably read me write about before. One often overlooked problem with coal (aside from the carbon doxide emissions from burning it, and the massive environmental destruction from mining it) is what to do with after it's been mined and burned. Coal combustion waste, or more commonly referred to as coal ash, is a toxic brew of metals and other pollutants that is the byproduct of coal-fired power generation.

Earthjustice and the Clean Air Task Force produced a report this month detailing the problems associated with coal ash disposal and contamination of groundwater supplies at ten sites in Pennsylvania. each year, millions of tons of coal ash are placed in abandoned and active mines, and eventually contaminate water supplies with mercury, arsenic, lead and other toxic metals.

However, this is not just a problem for the Keystone State. At least 23 states have reported poisoned ground and surface waters as a result of improper coal ash disposal. We're petitioning the EPA and the Pennsylvania Department of Environmental Protection to reconsider better safeguards for disposing of coal ash, the nation's second largest industrial waste stream.

As if there weren't reason enough already to begin minimizing our dependence on coal-fired power (global warming, acid rain, buried streams, decapitated mountains), the simple equation that more coal means more coal ash should really be cause for pause when considering America's energy future and the (hopefully limited) role that coal should play.

Last week, Senate Majority Leader Harry Reid announced his opposition to three proposed coal-fired power plants in Nevada. The plants would have taken away much needed water in the arid region, and added more greenhouse gases that contribute to global warming. Sen. Reid said in a story by the Associated Press, "All these power guys want to do is steal our air and water," and vowed that he's "going to do everything I can to stop it."

Citigroup downgraded stock values in coal comapnies from "buy" to "hold" last month, as the industry faces "grim second quarter earnings." Pending legislation curbing greenhouse gas emissions and the growing trend to look towards cleaner, renewable energy supplies puts the value of coal stock at risk.

In Florida, recent work by Earthjustice attorneys in our Tallahassee office helped convince the Florida Public utility Commission to deny permits to build the nation's largest coal-fired power plant just to the north of Everglades National Park. Earthjustice has also been active in opposing a proposed, federally underwritten, coal plant in Great Falls Montana. The federal agency underwriting the plant, the Rural Utility Service, plans to underwrite an additional seven dirty coal power plants in other states. A victory in an anticipated Earthjustice lawsuit challenging the federal financing of the Great Falls plant would likely affect federal subsidies for other plants as well.

Coal is a fossil fuel whose time seems to be waning. Americans want cleaner energy, a cleaner environment, and a cleaner future. Coal just can't be part of that equation.

Although, the EPA has identified 58 lead acid battery manufacturers as major sources of lead pollution—emitting more than 26 tons of lead and 47 tons of other hazardous pollutants each year—the EPA has failed to provide new regulations on the industry’s lead emissions. The EPA has proposed standards that 53 out of the 58 lead acid battery manufacturers are already in compliance with, rather than requiring manufacturers to incorporate new state-of-the art controls which are commercially available, industry appropriate, and proven to be more effective in limiting lead emissions. 

The EPA is proposing to continue following its 1982 New Source Performance Standards (NSPS) even though, it has become clear over the time that has passed since the initial issue of the 1982 NSPS, that far more effective controls are now available. These lead acid battery manufacturers are emitting this highly toxic pollutant into densely populated urban areas!

What are the health effects of lead pollution?

Lead is a toxic heavy metal that is responsible for causing nerve damage, anemia, and behavioral problems. Not to mention, it can also lower intelligence, impair hemoglobin production, and negatively affect the kidney and other organs. In fact, children and fetuses are the most vulnerable when it comes to lead poisoning, as it remains the most prevalent disease of environmental origin for children in the U.S. If lead poisoning is not detected early, there can be irreversible damage to the brain and nervous system, hearing problems, limited muscle and bone growth, and a decrease in mental development. 

The EPA should take advantage of these new technologies and revise their lead emission standards to protect our air. We deserve cleaner air!

Last week, the EPA ignored recommendations of its own scientific advisors and the health community, by revising its standards for ozone, the main component of smog. Under the new standards, ozone levels could be as high as 75 parts per billion (ppb)—which is lower than the current standard of 84ppb—however, health experts had recommended that a range of 60-70ppb is a more protective air quality level. 

Ozone is a sever lung irritant that is linked to asthma, chest pains, increased risk of infection, significant decreases in lung function, increased hospital admissions and emergency room visits, and even premature deaths. The EPA should be listening to the science, not the politics, and protect our air from smog pollution.

With that in mind, we have launched a new website, www.adoptthesky.org and on there you can sign a petition to tell the EPA that we need better smog standards. The website is very interactive and you can learn not only about the clean air cause, but about your state’s asthma population and read what others are saying about the new proposal. You can even post your own comments and adopt a piece of the sky…which is completely free! Let your voice be heard by visiting www.adoptthesky.org.

Industrial facilities often use industrial cleaners to clean and polish machines. Halogenated solvents like perchloroethylene and trichloroethylene (TCE) are associated with several types of cancer in humans, and breathing these chemicals can cause problems ranging from headaches to liver damage.

Collegeville, PA, is home to two metal tubing manufacturers, and has also reported the highest levels of TCE in the state. The Environmental Protection Agency has adopted a rule that exempts these facilities and dozens like them from controlling their carcinogenic emissions. Earthjsutice, on behalf of PennFuture and the Sierra Club, filed a lawsuit yesterday challenging the EPA's rule. Hopefully, for the people of Collegeville, and for the hundreds of other communities and neighborhoods around the country, EPA will decide the do the right thing and require controls on these pollutants.

Imagine thick plumes of smoke that billow across entire counties, completely black out highways, cause traffic accidents and increased hospital visits for people with asthma. Wait a minute...there's no need to imagine this because it's happening right now!

But not for much longer. A federal judge in Idaho ruled yesterday that field burning in Idaho -- which is where grass seed farmers set acres on fire to encourage new growth without having to replant -- is illegal. Even though Washington, which has grass seed farmers as well, already bans field burning, and Oregon is considering doing the same, Idaho allowed this practice, a violation of reqauirement sunder the Clean Air Act to limit pollution.

Field burning is extremely polluting, and can be mitigated with certain farming tehcniques that have proven to be viable in other states. Earthjustice had challenged Idaho's State Implementation Plan last year and won the case in federal court. But even though a 9th Circuit judge ruled the plan invalid under the Clean Air Act, the EPA decided that it was still okay for field burning to occur. The court yesterday essentially made it clear to EPA and the Idaho state legislature that field burning is illegal and has to stop. Take a deep breath Idahoans, (and Montanans and Canadians as well...smoke doesn't follow state or national borders), the air is about to get much, much cleaner.

Greetings and thanks to the folks at Talking Justice for the invite to join the blog forum. My name is Jared Saylor, and I'm a press secretary at Earthjustice in Washington DC. Earthjustice is a nonprofit environmental law firm with offices across the country that represent local and national environmental, public health and community groups in litigation seeking stronger protections for our water, air, endangered speceies and public lands. Learn more about us here.

Our DC office has a policy department along with a litigation team of six attorneys with a docket of cases focusing on national and local air and water issues. We also work on DC issues as well, such as cleaning up the Anancostia River and reducing smog in the District of Columbia metropolitan region. But enough about us...

Last week Congress introduced an important bill, the Clean Water Restoration Act. This bill clarifies the original intent of Congress when it passed the Clean Water Act over 30 years ago, that federal protections should extend to all waters of the United States. Last year, the Supreme Court offered a muddied ruling in two clean water cases (Rapanos and Carabell). With over 160 co-sponsors, the Clean Water Restoration Act removes the word "navigable" from the Clean Water Act and declares the intent that federal protections should extend to all waters of the United States, including streams, wetlands, rivers and lakes.

Stay tuned as a Senate version of the bill is expected to drop later this summer.